Interim Order 1

Order Details: Order
Pdf Text: 1 C. C. No. 4525/SS/2018
ORDER BELOW EXHIBIT NO. 17
The complainant has forwarded present application U/s. 91 of
Code of Criminal Procedure.
2. It is submitted by the complainant that, the process has been issued
against the accused and the summons was also issued against the accused
but the accused is not traceable. The police has also filed report that
summons could not be served. It is further submitted by the complainant
that, the accused was in USA for short duration between 28/05/2022 and
07/06/2022. He is a Indian Citizen. The summons was issued to the
accused but it is not served on the accused. Therefore, it is submitted by the
complainant that, notice may be issued to the Commissioner of Bureau of
Immigration, Ministry of Home Affairs, Branch manager – Bank of India,
Andheri (W) branch and the Principle Chief Commissioner of Income-tax,
Mumbai with a direction to produce documents and information regarding
the immigration record, bank record and information regarding immovable
property property sold and purchased by the accused.
3. Heard. Perused the application and record.
4. The present complaint is filed U/s. 138 of Negotiable Instruments
Act. Perusal of record, it seems that, the process came to be issued against
the accused. The summons were issued to the accused. Show-cause
notices were also issued to the concerned police. The complainant has filed
an application below Exh. 18 to issue proclamation against the accused
U/s. 82 of the Code of Criminal Procedure. This court has issued NBW
against the accused. Present proceeding is summary in nature and it is
required to issue summons and after service of summons if the accused
could not appear then B.W. is required to be issued and after service of B.W.
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again if accused could not remain present then NBW is required to be
issued and inspite of NBW accused is hiding himself from the process of law
then only the proclamation can be issued.
5. So far as present application is concerned it is filed by the
complainant with a prayer to issue notice to the Commissioner Bureau of
Immigration, Ministry of Home Affairs, Branch manager, Bank of India,
Andheri (W) branch and the Principle Chief Commissioner of Income-tax,
Mumbai with a direction to produce document and information regarding
the immigration record bank record and information regarding immovable
property property sold and purchased by the accused. Ld. Advocate for the
complainant has submitted that, these documents are required to him to
know the whereabouts of the accused. I have perused Section 91 of Code
of Criminal Procedure which reads as follows:-
“91. Summons to produce document or other thing.
(1) Whenever any Court or any officer-in-charge of a police station
considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation, inquiry, trial
or other proceeding under this Code by or before such Court or officer,
such Court may issue a summons, or such officer a written order, to the
person in whose possession or power such document or thing is believed
to be, requiring him to attend and produce it, or to produce it, at the
time and place stated in the summons or order.
(2) Any person required under this section merely to produce a
document or other thing shall be deemed to have complied with the
requisition if he causes such document or thing to be produced instead of
attending personally to produce the same.
(3) Nothing in this section shall be deemed -
(a) to affect sections 123 and 124 of the Indian Evidence Act,
1872 (1 of 1872), or the Banker's Books Evidence Act, 1891(13
of 1891); or
(b) to apply to a letter, postcard, telegram or other document or
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any parcel or thing in the custody of the postal or telegram
authority.
I have also perused the decision of Hon’ble High Court of Madhya
Pradesh at Indore in Sanjay Kumar S/o. Shri. Bhagchand Danjay V/s.
Vasudev S/o. Ramgopal Yadav and Anr., Misc. Criminal Case No. 37462 of
2022, decided on 23/06/2023. It has held that,
“8. Bare reading of the aforementioned provisions, it is reflected that the
Court is empowered to call any documents U/s. 91 of Cr.P.C, which are
necessary to fair proceeding of the case. The Court can issue summons to
the persons in whose possession the desirable documents are kept. The
powers which have been given to the Court U/s. 91 of Cr.P.C is
discretionary in nature and same can be exercised judiciously and in
proper manner. It also shows that the power to issue summon for the
production of a document are a thing is to be exercised whenever the
Court considers that its production is necessary or desirable for the
purpose of investigation, inquiry, trial or other proceeding.”
6. In the cited decision, the private complaint was filed for an offence
punishable U/s. 400, 467, 468, 471, 408, 409 and 120 (B) of IPC. In the
cited decision, it was the case of the complainant, the accused has
withdrawn an amount of Rs. 34,650/- from the bank without consent of
complainant and by committing forgery of cheque. In that matter, the
application U/s. 91 of Cr.P.C. was filed to issue summons to produce the
alleged cheque from the bank. The facts of the cited decision and facts of
the present case are altogether different. In the case in hand the
complainant prayed to issue notice to the above mentioned officers to know
the whereabouts of the accused. It is settled principle of law the summons
cannot issued U/s. 91 of the Code of Criminal procedure for collection of
evidence. By way of present application, the complainant wants to collect
the evidence which is not permissible in the eyes of law. This is a private
complaint and the complainant has to search the whereabouts of the
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accused. Therefore, application is devoid of merit and liable to be rejected.
Hence, I pass following order:-
ORDER
Application is rejected.
Date : 02/06/2026
Sd/-
(Y. P. Pujari)
Judicial Magistrate (First class)
48th Court, Andheri, Mumbai.
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